Throughout the COVID-19 pandemic, many employers have been
placed in the challenging position of being forced to temporarily
lay off employees due to public health restrictions and other
COVID-19 related factors. This puts employers at risk of
constructive dismissal claims from those affected. Outside of the
unionized sector, the common law provides that a temporary layoff
is really a termination of employment unless the right to
temporarily lay off is a specific term of the employment
contract.
Recent decisions in B.C. and Ontario appear to contradict one
another regarding the application of the common law to COVID
related layoffs and whether they constitute a constructive
dismissal. B.C. and Ontario decisions also take different
approaches when addressing how CERB payments affect any damages
award. This perhaps leaves Alberta employers guessing whether COVID
related layoffs will be interpreted as a constructive dismissal
(i.e. termination of the employment
